5Declaration of incompatibility(1)

Subsection (2) applies in any proceedings in which a court determines whether the following give rise to an incompatibility with the Charter Articles—

(a)

words in an Act of the Scottish Parliament to which section 6 applies,

(b)

words in subordinate legislation to which section 7 applies.

(2)

If the court is satisfied that the words give rise to an incompatibility with the Charter Articles, it may make a declaration stating that incompatibility (“a declaration of incompatibility”).

(3)

Where the incompatible words are in subordinate legislation, the court—

(a)

may make a declaration of incompatibility in relation to the subordinate legislation only if the court is satisfied that (disregarding any possibility of revocation) the Act of the Scottish Parliament by virtue of which the subordinate legislation is made prevents removal of the incompatibility,

(b)

may not make a declaration of incompatibility in relation to the subordinate legislation if the court is satisfied that (disregarding any possibility of revocation) words in another enactment to which neither section 6 nor 7 apply prevent removal of the incompatibility.

(4)

In this section “court” means—

(a)

the Supreme Court of the United Kingdom, or

(b)

the Court of Session.

(5)

A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the words in respect of which it is given.